The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Sunday, May 14, 2017

AG Sessions is being criticized by both sides of the aisle for his new sentencing guidance, which requires prosecutors to seek much harsher sentences than under the previous administration. The memorandum says:

Charging and sentencing recommendations are crucial responsibilities for any federal prosecutor. The directives I am setting forth below are simple but important. They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner, with the goal of achieving just and consistent results in federal cases.

First, it is a core principle that prosecutors should charge and pursue the most serious, readily provable offense. This policy affirms our responsibility to enforce the law, is moral and just, and produces consistency. This policy fully utilizes the tools Congress has given us. By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences.

It's hard to believe that we are going backwards and this is the criminal justice system that we will now be operating in. Which judges will stand up to the executive? Which judges will write sentencing orders explaining why prosecutors are asking for sentences that don't comport with 3553? Which judges will say enough is enough?

The boat cases in SDFLA seem to be a good opportunity for a judge to say something about the absurdity of these sentences. How much time should a fisherman get for being paid $2,000 to be a crewman on a drug boat that isn't even headed to the United States? The min/man is 10 years, and our prosecutors are seeking those sentences. From the Miami Herald:

“All three defendants admitted their involvement in the drug-smuggling conspiracy and that they knew they were transporting drugs on board the vessel,” the complaint says. “All three defendants also admitted that the vessel was going to Mexico and all were paid between $2,000 and $3,500 to transport the drugs.”...But Marc David Seitles, Bustos Pereira’s attorney, indicated that his client is a victim of the enforcement system.“Yet another impoverished fisherman with a second grade education facing a minimum of 10 years in federal prison,” Seitles said in an email message. “This is fighting the war on drugs? Laughable.”Many Latin American defendants in similar prior cases have told U.S. enforcement officials that they are fishermen or farmers who have been coerced or threatened by drug traffickers into transporting cocaine on boats.

This is not surprising. Currently the US DOJ is executive in name only. "As a lawyer admitted to a regulatory bar, AG Sessions is an "officer of the court" and part of the judicial branch of government." Ex parte Garland, 71 U.S. 333 (1866).

"Solicitor general nominee Noel Francisco told senators at his confirmation hearing Wednesday that the office "plays a special role" at the intersection of three branches of government."

"Francisco said the solicitor general serves as attorney for the president, and also defends laws passed by Congress when they are challenged in court, the National Law Journal (sub. req.) reports. The separation of powers, he said, was understood by the framers to be "the surest bulwark of liberty.""

2.45 - Separation of powers, and the Lawyer-Judge Bias in the American Legal System, are inconvenient truths, blind spots for the legal profession, especially poignant between the DOJ and the judiciary, see Professor Ben Barton,

https://youtu.be/Hbs_3lePAjE

In the meantime, people will suffer greatly under this misguided policy to "throw the book" at the accused, to punish as severely as possible.

In the April 2017 Florida Bar Journal, William J. Schifino, Jr. wrote, "This separation of powers is the basis for our system of government." See, The Judicial Branch: Co-Equal and Independent,

The Southern District of Florida blog was started in 2005 by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.